Karine Chiclana, Plaintiff, v. Troy Hunt, Defendant. (2001)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 28, 2001, which, in an action for personal injuries sustained by passengers in a car driven by defendant Troy Hunt, leased by defendant-appellant Joy Hunt and owned by defendant-appellant Mercedes Benz Credit Corporation, denied appellants' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The deposition testimony on which appellants rely is inconsistent in material respects, and insufficient to rebut the presumption of permissive use created by Vehicle and Traffic Law § 388(1) (see, MVAIC v. Levinson, 218 A.D.2d 606, 607, 630 N.Y.S.2d 747).   Troy and Joy testified that they were both in their apartment during the late evening preceding the early morning of the accident, watching TV, yet they failed to see one another.   According to Troy, he left the apartment after watching TV, saw his sister's car parked outside the building, returned to the “dark” apartment, changed his clothes, and then took his sister's car keys from her unlocked bedroom, which, according to both Troy and Joy, had always been locked in the past.   In any event, the deposition testimony of plaintiff passengers provide contradictory evidence of admissions by Troy that he had Joy's permission to drive the car and that he was paged by Joy in the car shortly before the accident.   Both Troy and Joy forgot their cell phone and pager numbers, as well as the identity of their respective service providers when, at deposition, such information was requested to verify the time of the page to Troy and of Joy's report of a stolen vehicle to 911.   It does not avail appellants to argue that the opposition to their motions is largely hearsay (see, Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 100, 691 N.Y.S.2d 483;  Largotta v. Recife Realty Co., 254 A.D.2d 225, 679 N.Y.S.2d 141).